‘No child left behind’ waivers fail at legality

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Secretary of Education Arne Duncan announced Friday that he will soon be granting waivers to selected states exempting them from the reading and math proficiency requirements of the No Child Left Behind law, which was President George W. Bush’s signature accomplishment in education reform.

According to Duncan, as many as 82 percent of U.S. schools could be deemed failing this year under standards established by NCLB.

“The states are desperately asking for us to respond,” Duncan told reporters via conference call.

States are, in fact, clamoring for relief from NCLB’s burdensome regulations. But there is just one small problem in Duncan’s plan: There is no legal basis for it.

To be sure, NCLB is unpopular among many liberal and conservative education policy experts. It requires states to identify “annual yearly progress” targets for standardized reading and math scores, and schools that miss those targets are labeled as “failing.” By 2014, 100 percent of all students must be proficient in reading and math, or else schools that fall short will suffer severe federal sanctions.

Liberals support NCLB’s emphasis on federal direction of education policy, but they dislike the law’s focus on standardized testing. This allies them with teachers unions, which hate anything that holds their members accountable for how well children learn in their classrooms.

On the other hand, conservatives believe local school districts should be free from federal interference, and they reject the burdensome paperwork that comes with NCLB funding. There is actually bipartisan consensus for repealing NCLB in Congress, but President Barack Obama has yet to propose a replacement during his nearly three years in the Oval Office.

Instead, the president chose to use stimulus dollars to entice states into adopting reforms favored by Duncan. But now that the stimulus money has run out, the carrot is being replaced with a stick. Any state can apply for an NCLB waiver, but only those states that present applications personally approved by Duncan will be granted waivers.

The New York Times has called Duncan’s waiver plan “the most sweeping use of executive authority to rewrite federal education law since Washington expanded its involvement in education in the 1960s.”

Unfortunately, Obama’s penchant for governing either by selective enforcement of federal laws or using regulatory action to circumvent them is not limited to education policy. His administration has ignored the War Powers Act, trampled on long-established bankruptcy laws to bail out Chrysler, failed to enforce anti-voter fraud laws, defied a federal judge’s order to allow offshore oil drilling and refused to enforce our nation’s immigration laws.

In Federalist 47, James Madison wrote: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Duncan’s NCLB waiver plan will make him the judge, jury and executioner of national education policy. This is exactly the type of government action our Constitution was designed to prevent.